Ghosh v NineMSN Pty Ltd - [2014] NSWCA 180

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ghosh v NineMSN Pty Ltd [2014] NSWCA 180
Hearing dates: 2 June 2014
Decision date: 06 June 2014
Before: Meagher JA
Decision:
(a) In proceeding 2013/282150:
(1) Refuse an extension of time for the filing of the amended summons seeking leave to appeal.
(2) The amended summons seeking leave to appeal be dismissed.
(3) The applicant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014.
(4) The applicant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014.
(b) In proceeding 2013/330096:
(1) Refuse an extension of time for the filing of the summons seeking leave to appeal.
(2) The summons seeking leave to appeal be dismissed.
(3) The appeal be dismissed as incompetent.
(4) The applicant/appellant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014.
(5) The applicant/appellant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - summons for leave to appeal from interlocutory orders filed out of time - application to dismiss summons - whether in interests of justice to extend time - proposed appeals have no real prospects of success - applications for leave to appeal dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60
District Court Act 1973 (NSW), s 127
Uniform Civil Procedure Rules, rr 15.1, 15.19, 51.2, 51.10
Cases Cited: Gallo v Dawson [1990] HCA 30; 64 ALJR 458
Ghosh v NineMSN Pty Ltd & Ors [2013] NSWDC 63
House v The King [1936] HCA 40; 55 CLR 499
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Category: Interlocutory applications
Parties: Dr Ratna Ghosh (Applicant)
NineMSN Pty Ltd (First Respondent)
NBN Ltd (Second Respondent)
Katie Gregory (Third Respondent)
Justin Butterworth (Fourth Respondent)
Fairfax Media (Fifth Respondent)
Stayz Pty Ltd (Sixth Respondent)
Gold Coast Publications (Seventh Respondent)
News Ltd (Eighth Respondent)
Representation: Counsel:
CJ Dibb (Applicant)
L Barnett (Respondents)
Solicitors:
Carters Law Firm (Applicant)
Johnson Winter & Slattery (First, Second and Third Respondents)
Banki Haddock Fiora (Fourth, Fifth and Sixth Respondents)
Ashurst Australia (Seventh and Eighth Respondents)

File Number(s): 2013/282150 2013/330096
Decision under appeal

Jurisdiction:

9101

Citation:

Ghosh v NineMSN Pty Ltd & Ors (No 2) [2013] NSWDC 145
Ghosh v NineMSN Pty Ltd & Ors (No 3) [2013] NSWDC 206

Before:

Gibson DCJ

File…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ghosh v NineMSN Pty Ltd

Details

AGLC: Ghosh v NineMSN Pty Ltd [2014] NSWCA 180
Case: [2014] NSWCA 180
Decision Date: 06 June 2014

CaseChat Overview and Summary

In proceeding 2013/282150, the applicant, Ghosh, sought leave to appeal interlocutory orders made in proceedings against NineMSN Pty Ltd and others. The summons seeking leave to appeal was filed out of time, and the respondents applied to dismiss the summons. In proceeding 2013/330096, a similar application was made concerning a summons seeking leave to appeal, which was also filed out of time.

The primary legal issue before Meagher JA was whether it was in the interests of justice to grant an extension of time for the filing of the summonses seeking leave to appeal. This required the court to consider the prospects of success of the proposed appeals.

Meagher JA reasoned that the proposed appeals had no real prospects of success. Consequently, the court determined that it was not in the interests of justice to extend the time for filing the summonses. Accordingly, the applications for leave to appeal were dismissed. The applicant was ordered to pay the costs of the respondents in both proceedings.

Orders

Orders of the court

(a) In proceeding 2013/282150:

(1) Refuse an extension of time for the filing of the amended summons seeking leave to appeal.

(2) The amended summons seeking leave to appeal be dismissed.

(3) The applicant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014.

(4) The applicant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014.

(b) In proceeding 2013/330096:

(1) Refuse an extension of time for the filing of the summons seeking leave to appeal.

(2) The summons seeking leave to appeal be dismissed.

(3) The appeal be dismissed as incompetent.

(4) The applicant/appellant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014.

(5) The applicant/appellant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ghosh v NineMSN Pty Ltd [2014] NSWCA 180
Hearing dates:	2 June 2014
Decision date:	06 June 2014
Before:	Meagher JA
Decision:	(a) In proceeding 2013/282150: (1) Refuse an extension of time for the filing of the amended summons seeking leave to appeal. (2) The amended summons seeking leave to appeal be dismissed. (3) The applicant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014. (4) The applicant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014. (b) In proceeding 2013/330096: (1) Refuse an extension of time for the filing of the summons seeking leave to appeal. (2) The summons seeking leave to appeal be dismissed. (3) The appeal be dismissed as incompetent. (4) The applicant/appellant pay the costs of the first, second and third respondents of their notice of motion filed on 17 April 2014. (5) The applicant/appellant pay the costs of the fourth, fifth and sixth respondents of their notice of motion filed on 17 April 2014. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - summons for leave to appeal from interlocutory orders filed out of time - application to dismiss summons - whether in interests of justice to extend time - proposed appeals have no real prospects of success - applications for leave to appeal dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 60 District Court Act 1973 (NSW), s 127 Uniform Civil Procedure Rules, rr 15.1, 15.19, 51.2, 51.10
Cases Cited:	Gallo v Dawson [1990] HCA 30; 64 ALJR 458 Ghosh v NineMSN Pty Ltd & Ors [2013] NSWDC 63 House v The King [1936] HCA 40; 55 CLR 499 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Category:	Interlocutory applications
Parties:	Dr Ratna Ghosh (Applicant) NineMSN Pty Ltd (First Respondent) NBN Ltd (Second Respondent) Katie Gregory (Third Respondent) Justin Butterworth (Fourth Respondent) Fairfax Media (Fifth Respondent) Stayz Pty Ltd (Sixth Respondent) Gold Coast Publications (Seventh Respondent) News Ltd (Eighth Respondent)
Representation:	Counsel: CJ Dibb (Applicant) L Barnett (Respondents) Solicitors: Carters Law Firm (Applicant) Johnson Winter & Slattery (First, Second and Third Respondents) Banki Haddock Fiora (Fourth, Fifth and Sixth Respondents) Ashurst Australia (Seventh and Eighth Respondents)
File Number(s):	2013/282150 2013/330096
Decision under appeal	Jurisdiction: 9101 Citation: Ghosh v NineMSN Pty Ltd & Ors (No 2) [2013] NSWDC 145 Ghosh v NineMSN Pty Ltd & Ors (No 3) [2013] NSWDC 206 Before: Gibson DCJ File…